The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3062-22
BARBARA A. HOPKINS,
Plaintiff-Respondent,
v.
JOHN J. HOPKINS, III,
Defendant-Appellant.
_______________________
Submitted December 3, 2024 – Decided December 16, 2024
Before Judges Firko and Bishop-Thompson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-1904-13.
John J. Hopkins, III, appellant pro se.
Laufer, Dalena, Jensen, Bradley & Doran, LLC,
attorneys for respondent (Alyssa M. Clemente, on the
brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant John J. Hopkins, III,
appeals from two orders: (1) a June 9, 2023, order denying his motion to
reconsider the summary dismissal of a motion to emancipate and terminate child
support, recalculate past child support, and order a Qualified Domestic Relations
Order (QDRO) on retirement accounts; and (2) a June 14, 2023, order denying
emergent relief by way of an order to show cause (OTSC) and awarding counsel
fees to plaintiff Barbara A. Hopkins. We affirm.
I.
The factual and procedural chronology are set forth in this court's
unpublished opinion entered on December 26, 2017. We incorporate by
reference, the facts and procedural chronology stated in our prior opinion. See
Hopkins v. Hopkins, No. A-5338-14 (App. Div. Dec. 26, 2017). We provide the
following pertinent information to give context to this appeal.
On May 18, 2015, the parties were divorced after a twenty-two-year
marriage. They have three children together born in 1996, 1998, and 2001.
Plaintiff has an undergraduate degree in public accounting and a graduate degree
in taxation. Defendant is an attorney with a law practice in Monmouth County
for over twenty years and is a certified public accountant.
A-3062-22
2
In May 2013, plaintiff filed a complaint for divorce. Three months later,
defendant filed an answer and counterclaim for divorce. On April 4, 2014, the
judge struck defendant's pleadings without prejudice due to his failure to comply
with discovery requests and failure to allow the joint financial expert to
complete a business evaluation of his law practice. The judge also ordered
defendant to pay plaintiff's share of mediation fees and awarded $2,500.00
towards her counsel fees due to defendant's failure to act in good faith in the
mediation process. On June 10, 2014, a memorializing order was entered.
On August 1, 2014, the judge denied defendant's motion to reinstate his
pleadings due to his failure to comply with the joint expert's requirements. The
judge also denied defendant's motion to change venue. On September 16, 2014,
we denied defendant's motion for leave to appeal, for a stay, for a change of
venue, and to reinstate his pleadings.
On October 10, 2014, the judge denied defendant's motion to reinstate his
pleadings on the basis he failed to comply with plaintiff's discovery requests,
failed to comply with the financial expert's requests for documents, and provide
a signed retainer agreement. The judge ordered defendant to comply with the
outstanding factual and expert discovery demands, sign the financial expert's
A-3062-22
3
retainer agreement, submit a letter to the judge certifying that he had complied
with all discovery requests, and awarded plaintiff $1,500.00 in counsel fees.
On January 16, 2015, the judge denied defendant's motion to reinstate his
pleadings because he still had not complied with the court's order. A default
hearing was scheduled and held over several days, with defendant limited to
cross-examination. Relevant to the matter under review, plaintiff testified that
she worked for CNA Insurance Company (CNA), when the parties got married
in 1991, and she continued to work for CNA until April 1999, when she became
employed by Global Risk Consultants. Plaintiff proposed that her "small
pension with CNA" be split "50/50[,]" and defendant be allowed to retain his
retirement account.
On May 18, 2015, the judge rendered an oral decision and granted the
parties a final judgment of divorce. On June 26, 2015, the judge issued an
amended final judgment of divorce (AFJOD), which ordered, in pertinent part,
that "[t]he marital portion of plaintiff's CNA pension shall be divided equally
between the parties by way of [a QDRO]."
Post-divorce, the parties engaged in contentious motion practice. Plaintiff
filed several motions to enforce litigant's rights based on defendant's non -
A-3062-22
4
payment of child support, failure to cooperate with selling the former marital
home, and provide necessary information to satisfy the terms of the AFJOD.
On April 9, 2021, following oral argument, the judge entered an order
stating:
The parties shall attend mediation to address the issues
of: (1) modified child support, retroactive to March 29,
2021; (2) satisfaction of any amounts [defendant] was
ordered to pay in the AFJOD that cannot be satisfied
from his portion of the proceeds from the sale of the
marital home, accounting for any potential required
credits owed to [defendant] by [plaintiff]; (3) lump sum
payment towards child support arrears, to the extent
same cannot be satisfied in full from his portion of the
proceeds from the sale of the marital home; and (4)
counsel fees.
On August 31, 2021, the judge issued an order directing the former marital
home be listed for sale immediately and finding defendant in violation of
plaintiff's rights. The judge denied all relief sought by defendant, including
defendant's request to deny plaintiff's motion, his request for plaintiff to provide
complete answers to interrogatories, his request for penalties if plaintiff did not
provide documents and interrogatories by a certain date, and for mediation of
the issues. The judge stated, "[t]his court is again faced with an enforcement
motion by plaintiff, due to defendant's delays and noncompliance since the
issuance of the last [c]ourt [o]rder dated April 9, 2021." Further, the judge
A-3062-22
5
issued an order requiring defendant to pay plaintiff counsel fees in the amount
of $3,840.00.
On January 18, 2022, defendant filed a motion that was procedurally
deficient. This motion is not contained in the record. On February 16, 2022,
after defendant failed to cure the deficiencies, the motion was dismissed. On
January 29, 2023, defendant filed two motions seeking: (1) to terminate his
child support obligation, his arrears, and reconsider support arrears if plaintiff
provides discovery, and (2) requesting a QDRO be prepared for retirement
accounts.
On March 10, 2023, oral argument was held on defendant's motions.
During the hearing, the judge held,
Plaintiff's request requiring defendant to be
solely responsible for the cost of any and all [the] fees
associated with the QDRO implementation of C[N]A
pension, including but not limited to the cost of [A]ll
[P]ro QDRO is granted. . . . [D]efendant has had the
ability through all of these eight years to submit the
QDRO for the pension, he has failed to do that. He
wants to do it now, he shall do it.
. . . [P]laintiff's request sanctioning defendant in
the amount of [$]2,500[.00] for his willful and
intentional misrepresentations to the [c]ourt regarding
the QDRO is denied without prejudice as is his request
for the bench warrant if he fails to pay that amount.
Plaintiff's request for counsel fees and cost associated
with both cross[-]motions in the amount of $3,160[.00],
A-3062-22
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that is with regard to the child support, and the
$2,514[.00] for the cross[-]motion. This [c]ourt grants
that in part.
....
The fees previously awarded, there were two
prior occasions, on April 29th, 2021 counsel fees in the
amount of $2,294[.00], that amount was added to the
arrears. And on August 31st, 2021 counsel fees were
awarded in the amount of $3,840[.00]. Those have not
been paid.
....
And any other factor bearing on the fairness of
the award, this [c]ourt does find that the—the amounts
submitted by counsel are fair and reasonable in—
similar to the rate in which counsel similarly is situated
in it[]s geographical area. So with regard to the fees
and request for fees the fee amount of $3,160[.00], that
was for the cross[-]motion to defend and enforce child
support. This [c]ourt will add that amount to the arrears
of child support.
With regard to the fees, that is $2,514[.00] for the
cross[-] motion regarding the QDRO, at this time this
[c]ourt does grant those fees after an assessment of the
factors required by the [c]ourt . . . .
That same day, the judge entered an order granting plaintiff's request to
require defendant to be solely responsible for the costs associated with the
QDRO. Further, regarding counsel fees, the order stated,
Plaintiff's request for counsel fees and costs associated
with both [c]ross-[m]otions, $3,160[.00] for the cross-
A-3062-22
7
motion regarding child support and $2,514[.00] for the
cross[-]motion regarding the QDRO, is GRANTED in
part. Plaintiff's counsel fees in the amount $3,160[.00]
to be added to [d]efendant's child support arrears, and
[p]laintiff's counsel fees in the amount of $2,514[.00]
to be payable directly to [the law firm].
On May 2, 2023, defendant filed a "motion for reconsideration of
dismissal of motion for a QDRO and to terminate support." On June 9, 2023,
oral argument was held by the judge. Following argument, the judge found:
. . . [W]ith regard to [defendants]' motion for
reconsideration, this [c]ourt notes that a motion for
reconsideration seeking to alter or amend a judgment or
order is governed by . . . Rule 4:49-2. Such an
application shall be served not later than [twenty] days
after service of the judgment or upon all parties by the
party obtaining it. The motion shall state with
specificity the basis on which it is made, including a
statement of the matters or controlling decisions which
counsel believes the [c]ourt has overlooked or as to
which it has erred. And shall have annexed thereto a
copy of the judgment or order sought to be
reconsidered.
....
This [c]ourt notes that the application by the, or
rather the motion for reconsideration filed by
[defendant] is deficient. The [c]ourt initially notes that
the order in which he is seeking reconsideration of
March 10th, 2023. He filed this motion for
reconsideration on May 2nd, that's [thirty-three] days
out of time. He doesn't give a reason why there's such
an extension or why he failed to file it within time. He
A-3062-22
8
did not seek leave or even provide any good cause for
the [c]ourt to consider it.
Further, in accordance with [c]ourt [r]ules,
there's supposed to be, or there must be a proposed form
of order submitted with the motion. That was not
provided by [defendant]. Further, there's no brief in his
motion for reconsideration to specify the facts, the law
or whatever the [c]ourt must, may have overlooked.
And most significantly, again, this must be at
least the third motion that [defendant] has filed with
regard to child support. He has failed to file a case
information statement [(CIS)] yet again.
For those reasons, this [c]ourt is constrained to
deny [defendant's] motion in its entirety.
....
Plaintiff's request enforcing paragraph [eleven]
of the March 10th, 2023 order, and requiring defendant
to pay counsel fees of $2,514[.00] directly to [the law
firm] within seven days of this order is granted.
....
And the last request, plaintiff's request for
counsel fees and costs for this motion, this within
application, is granted.
....
Accordingly, this [c]ourt is going to grant the
request for counsel fees and costs for the within
application in the amount of $2,888[.00], which shall
be paid to [plaintiff's law firm] within [thirty] days of
the entry of this order.
A-3062-22
9
On June 9, 2023, the judge issued an order: (1) denying defendant's
motions; (2) granting plaintiff's request to emancipate the children as of May
18, 2023; (3) finding all child support arrears as of May 18, 2023 would remain
in full force and effect; (4) awarding counsel fees of $2,514.00 as per the March
10, 2023 order; (5) for the issuance of a bench warrant for defendant's arrest if
he did not pay counsel fees as per the March 10, 2023 order in seven days; and
(6) awarding counsel fees of $2,888.00.
On July 7, 2023, defendant filed an amended notice of appeal from only
the June 14, 2023 order. However, in the description section, defendant stated
he was "[a]ppealing [o]rders on 3/10/23 1 and 6/14/23." On January 22, 2024,
we denied defendant's motion for stay and stated,
Defendant appeals from March [10], 2023 and June 9,
2023 Family Part orders. We deny defendant's motion
for a stay because the record does not include any
evidence he sought a stay in, or was denied a stay by,
the trial court from any provision of the orders from
which he appeals. The orders also make no provision
concerning plaintiff's transfer of assets, making of
payments, and, as such, defendant makes no showing a
stay of the orders will affect plaintiff's authority to
transfer assets and make payments. Defendant also
otherwise makes no showing of a likelihood of success
1
Defendant missed the forty-five-day deadline to appeal from the March 10,
2023 order. See R. 2:4-1. Therefore, we only address defendant's appeal insofar
as it pertains to the June 9 and June 14, 2023 orders.
A-3062-22
10
on the merits of his appeal from the orders such that he
has satisfied his burden of establishing an entitlement
to a stay under [Crowe v. DeGioia, 90 N.J. 126 (1982)].
That same day, we also denied defendant's motion for summary
disposition and granted plaintiff's motion to strike defendant's appendix and
brief. We directed plaintiff to submit an appendix and brief that was compliant
with the Rules of Court. This appeal followed.
Before us, defendant presents the following arguments for our
consideration:
(1) The judge erred in denying his motion for
reconsideration and should have compelled plaintiff
to provide court-ordered discovery, allowed
mediation, and be sanctioned for her "willful
failure" to provide discovery;
(2) The judge erred by not sanctioning plaintiff civilly
and criminally for fraud in deliberately hiding assets
from the court; and
(3) The award of counsel fees should be reversed as
America follows the American Rule and plaintiff
has not acted with clean hands.
We are unpersuaded.
II.
Appellate courts defer to the trial court's findings of fact "when supported
by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,
A-3062-22
11
412 (1998); see Gnall v. Gnall, 222 N.J. 414, 428 (2015). We review orders
entered by the Family Part under a deferential standard of review. Landers v.
Landers, 444 N.J. Super. 315, 319 (App. Div. 2016) (citing Gnall, 222 N.J. at
428). Appellate courts "review the Family Part judge's findings in accordance
with a deferential standard of review, recognizing the court's 'special jurisdiction
and expertise in family matters.'" Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-
83 (2016) (quoting Cesare, 154 N.J. at 413).
Family Part judges have broad discretion to allocate assets subject to
equitable distribution, Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012),
make alimony determinations, Martindell v. Martindell, 21 N.J. 341, 355 (1956),
and decide income imputations, Storey v. Storey, 373 N.J. Super. 464, 474-75
(App. Div. 2004). If we conclude there is satisfactory evidentiary support for
the trial judge's findings, our "task is complete" and we will not disturb the
result. Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J.
146, 162 (1964)).
Thus, while we owe no special deference to the trial judge's legal
conclusions, Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995), we will
"not disturb the factual findings and legal conclusions
of the trial judge unless . . . convinced that they are so
A-3062-22
12
manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence
as to offend the interests of justice" or when we
determine the court has palpably abused its discretion.
[Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div.
2010) (alteration in original) (quoting Cesare, 154 N.J.
at 412).]
A.
Defendant argues that the judge erred when she applied Rule 4:49-2 and
not Rule 4:50-1 in dismissing his motion for reconsideration. He also contends
the judge should have compelled plaintiff to provide court ordered discovery,
attend mediation, and be sanctioned for her "willful failure" to provide
discovery.
Under Rule 4:49-2,
Except as otherwise provided by [Rule] 1:13-1 (clerical
errors), a motion for rehearing or reconsideration
seeking to alter or amend a judgment or final order shall
be served not later than [twenty] days after service of
the judgment or order upon all parties by the party
obtaining it. The motion shall state with specificity the
basis on which it is made, including a statement of the
matters or controlling decisions that counsel believes
the court has overlooked or as to which it has erred, and
shall have annexed thereto a copy of the judgment or
final order sought to be reconsidered and a copy of the
court's corresponding written opinion, if any.
A-3062-22
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A decision on whether to deny motion for reconsideration under Rule
4:49-2 is addressed to the judge's discretion. Branch v. Cream-O-Land Dairy,
244 N.J. 567, 582 (2021); Kornbleuth v. Westover, 241 N.J. 289, 301 (2020).
"Reconsideration cannot be used to expand the record and reargue a motion[,
but] . . . is only to point out the matters or controlling decisions which counsel
believes the court has overlooked or as to which it has erred." Cap. Fin. Co. of
Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008)
(internal quotation marks omitted) (quoting R. 4:49-2).
"In short, a motion for reconsideration provides the court, and not the
litigant, with an opportunity to take a second bite at the apple to correct errors
inherent in a prior ruling." Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div.
2015). It "does not provide the litigant with an opportunity to raise new legal
issues that were not presented to the court in the underlying motion." Ibid. We
next apply these foundational principles to the matter before us.
Defendant moved for reconsideration of the judge's March 10, 2023,
order. On June 6, 2023, following oral argument on defendant's motion for
reconsideration, the judge stated,
This [c]ourt notes that . . . the motion for
reconsideration filed by [defendant] is deficient. The
[c]ourt initially notes that the order in which he is
seeking reconsideration of March 10th, 2023. He filed
A-3062-22
14
this motion for reconsideration on May 2nd, that's
[thirty-three] days out of time. He doesn't give a reason
why there's such an extension or why he failed to file it
within time. He did not seek leave or even provide any
good cause for the [c]ourt to consider it.
Further, in accordance with [c]ourt [r]ules,
there's supposed to be, or there must be a proposed form
of order submitted with the motion. That was not
provided by [defendant]. Further, there's no brief
[submitted] in [support of] his motion for
reconsideration to specify the facts, the law or whatever
the [c]ourt must, may have overlooked.
And most significantly, again, this must be at
least the third motion that [defendant] has filed with
regard to child support. He has failed to file a [CIS] yet
again.
For those reasons, this [c]ourt is constrained to
deny [defendant's] motion in its entirety.
On a procedural basis, and this [c]ourt also notes,
this is not the first motion that [defendant] has brought
with regard to child support and seeking an alteration
thereof. And yet again, he fails to comply with the
[c]ourt [r]ules mandating, requiring him to file a CIS. 2
Defendant asserts the judge erred in not allowing discovery on the newly
discovered 401(k) plan. Defendant claims he obtained a 401(k) statement from
2
Rule 2:5-1(a)(3) provides: "An appeal from the final judgment of a court is
taken by filing with the court from which the appeal is taken and the appellate
court, and serving those identified in paragraph (b) of this rule with: a [CIS] in
the format required by paragraph (h) of this rule."
A-3062-22
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plaintiff showing she had a marital retirement account worth over
$2,000,000.00. According to defendant, plaintiff never disclosed this account—
or its value—on her CIS or in discovery.
The judge correctly rejected defendant's arguments because the motion for
reconsideration was filed thirty-three days past the twenty days allowed by Rule
4:49-2. Moreover, the judge correctly rejected defendant's arguments because
his filing was deficient, with no brief, proposed order, or CIS submitted. Rule
4:49-2 does not permit plaintiff to "take a second bite at the apple." Medina,
442 N.J. Super. at 18. Therefore, we conclude the judge properly denied
plaintiff's motion for reconsideration of the child support calculation and did not
abuse her discretion.
Further, it is well established that a court may relieve a party from final
judgment or order if it finds,
(a) mistake, inadvertence, surprise, or excusable
neglect; (b) newly discovered evidence which would
probably alter the judgment or order and which by due
diligence could not have been discovered in time to
move for a new trial under R. 4:49; (c) fraud (whether
heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse
party; (d) the judgment or order is void; (e) the
judgment or order has been satisfied, released or
discharged, or a prior judgment or order upon which it
is based has been reversed or otherwise vacated, or it is
no longer equitable that the judgment or order should
A-3062-22
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have prospective application; or (f) any other reason
justifying relief from the operation of the judgment or
order.
[R. 4:50-1.]
Under Rule 4:50-1, a party may move for relief from a judgment or order
based on six enumerated grounds. Rule 4:50-1 "[was] designed to reconcile the
strong interests in finality of judgments and judicial efficiency with the equitable
notion that courts should have authority to avoid an unjust result in any given
case." BV001 REO Blocker, LLC v. 53 W. Somerset St. Props., LLC, 467 N.J.
Super. 117, 123 (App. Div. 2021) (quoting Manning Eng'g, Inc. v. Hudson Cnty.
Park Comm'n, 74 N.J. 113, 120 (1977)).
As such, a motion for relief under Rule 4:50-1 should be granted
"sparingly [and only] in exceptional situations . . . in which, were it not applied,
a grave injustice would occur." Badalamenti v. Simpkiss, 422 N.J. Super. 86,
103 (App. Div. 2011) (alterations in original) (quoting Hous. Auth. of
Morristown v. Little, 135 N.J. 274, 289 (1994)). Under the rule, the movant
bears the burden of demonstrating his or her entitlement to relief. See Jameson
v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425-26 (App. Div. 2003).
A motion to vacate under Rule 4:50-1 "is a determination left to the sound
discretion of the trial court, guided by principles of equity." F.B. v. A.L.G., 176
A-3062-22
17
N.J. 201, 207 (2003). That said, the "[trial] court's judgment will be left
undisturbed 'unless it represents a clear abuse of discretion.'" Id. at 207-08
(quoting Little, 135 N.J. at 283). A court abuses its discretion "'when a decision
is "made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis."'" Pitney Bowes Bank, Inc. v.
ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015) (quoting
Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
Here, defendant does not indicate which of the six enumerated grounds he
moved for relief of judgment under Rule 4:50-1. But in any event, defendant is
mistaken because plaintiff's CNA pension plan was not only disclosed by her
prior to the entry of the AFJOD but defendant was awarded his marital portion
of plaintiff's CNA pension in the AFJOD. Specifically, Section G of the AFJOD
entitled, "Plaintiff's CNA pension," states, "[t]he marital portion of plaintiff's
CNA pension shall be divided equally between the parties by way of QDRO."
We affirmed on appeal. Hopkins, slip op. at 23. The pension plan that defendant
describes as a 401(k) plan is the CNA Retirement Plan, which was equitably
distributed. Therefore, plaintiff did not hide the asset, defendant was awarded
his equitable share, and we already affirmed this issue on direct appeal.
A-3062-22
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B.
Next, we address defendant's argument that the judge erred by not
sanctioning plaintiff civilly and criminally for fraud in deliberately hiding assets
from the court. Defendant avers plaintiff "hid the existence of . . . substantial
assets, a 401[(k)]" from the court and defendant, amounting to over
$2,000,000.00. Defendant cites to Von Pein v. Von Pein, 268 N.J. Super. 7
(App. Div. 1993), for the proposition plaintiff committed criminal contempt
under Rules 1:10-1 and 1:10-3. Defendant argued a recalculation of child
support and arrears was necessary and collection should be stayed. We reiterate
that defendant's contentions are belied by the record because the AFJOD
awarded him equitable distribution of the marital portion of plaintiff's CNA
pension.
We are satisfied that plaintiff did not hide any assets from defendant. We
conclude plaintiff did not commit civil or criminal fraud and reject defendant's
argument.
C.
Finally, defendant contends that the award of counsel fees should be
reversed "as America follows the American Rule" and "plaintiff has not acted
with clean hands." Defendant argues he could not afford an attorney and was
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self-represented, plaintiff earns more money than he does, and he has a "physical
disability that hinders employment." Defendant claims plaintiff resisted
discovery relative to the 401(k) plan, and the $2,000,000.00 amount was not
listed in any CIS or described in answers to interrogatories.
New Jersey generally follows the American Rule which provides that each
party must pay his or her own counsel fees, Innes v. Marzano-Lesnevich, 224
N.J. 584, 592 (2016), however, counsel fees are permitted under Rule 4:42-9 in
a family action. Such fees may be awarded based on a weighing of the factors
set forth in Rule 5:3-5(c):
(1) the financial circumstances of the parties; (2)
the ability of the parties to pay their own fees or to
contribute to the fees of the other party; (3) the
reasonableness and good faith of the positions
advanced by the parties both during and prior to
trial; (4) the extent of the fees incurred by both
parties; (5) any fees previously awarded; (6) the
amount of fees previously paid to counsel by each
party; (7) the results obtained; (8) the degree to
which fees were incurred to enforce existing orders
or to compel discovery; and (9) any other factor
bearing on the fairness of an award.
Pursuant to RPC 1.5(a):
A lawyer's fee shall be reasonable. The factors to be
considered in determining the reasonableness of a fee
include the following:
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20
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude
other employment by the lawyer;
(3) the fee customarily charged in the locality for
similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of the lawyer
or lawyers performing the services;
(8) whether the fee is fixed or contingent.
Typically, the award of counsel fees and costs in matrimonial actions rests
in the sound discretion of the trial court. Williams v. Williams, 59 N.J. 229, 233
(1971). An award of fees will not be disturbed in the absence of a showing of
abuse. Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970). The Appellate
Division "will disturb a trial court's determination on counsel fees only on the
'rarest occasion,' and then only because of clear abuse of discretion[,]" Strahan
v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v.
A-3062-22
21
Pantzer, 141 N.J. 292, 317 (1995)), or a clear error in judgment. Tannen v.
Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010).
Where case law, statutes, and rules are followed and the judge makes
appropriate findings of fact, the fee award is entitled to deference. Yueh v.
Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000); see also Pressler & Verniero,
Current N.J. Court Rules, cmt. 4.7 on R. 5:3-5 (2025); J.E.V. v. K.V., 426 N.J.
Super. 475, 493-94 (App. Div. 2012).
One consideration in making an award of fees is whether a party acted in
bad faith throughout the litigation. Borzillo v. Borzillo, 259 N.J. Super. 286,
291-94 (Ch. Div. 1992); Williams, 59 N.J. at 233. Bad faith may be
demonstrated by misuse or abuse of process, seeking relief which one knows or
should know that no reasonable argument could be advanced in fact or law to
support, intentional misrepresentation of facts or law, and acts of a losing party
that are vexatious, wanton or carried out for oppressive reasons. Borzillo, 259
N.J. Super. at 293-94. And, counsel fees may be awarded when a party has
unnecessarily prolonged the litigation. Marx v. Marx, 265 N.J. Super. 418, 429
(Ch. Div. 1993).
Here, the judge carefully analyzed each of the Rule 5:3-5(c) factors.
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The financial circumstances of the parties.
In her March 10, 2023, opinion, the judge considered the financial
circumstances of the parties:
And this [c]ourt notes the financial circumstances of the
parties and the [c]ourt also notes that . . . defendant in
failing to submit a [CIS] or any other financial
documents certainly constrains the [c]ourt to a certain
extent, but the [c]ourt recognizes that the financial
circumstances of the parties are such that the [c]ourt
would find it cannot make any finding specific as to
what [defendant] has available to him.
Further in her June 9, 2023, opinion, the judge again considered the
financial circumstances of the parties:
[T]his [c]ourt notes that [defendant] is representing
himself. He is working. And the financial position of
. . . plaintiff is that yet again she is brought before the
[c]ourt to pay counsel fees to enforce a motion which
actually the ability of the parties to pay their own fees
or to contribute to the fees of the other parties. This
[c]ourt notes that [defendant] failed to file a [CIS] in
this case.
The ability of the parties to pay their own fees or to contribute to the fees
of the other party.
In her March 10, 2023, opinion, the judge considered the ability of the
parties to pay their own fees or to contribute to the fees of the other party :
This [c]ourt notes that there are substantial arrears that
are due to . . . plaintiff in this matter as of today
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$105,510.69 are the total arrears for child support that
this defendant owes.
This [c]ourt notes that over the past year since February
of 2022 nominal amounts have been paid by . . .
defendant. $100[.00], $150[.00], that is February and
March of 2022, respectively. Nominal amounts each
month have been paid by . . . defendant, most recently
$30[.00] this past—for the month of March of 2023,
$60[.00] for the month of February 2023, $30[.00] from
January of 2023.
As such this [c]ourt finds that . . . plaintiff has received
of the total amount of child support that has been due
in owning, [$]39,000[.00] approximately. The
[$]105,000[.00] still remains due and owing to her.
Further in her opinion from June 9, 2023 opinion, the judge analyzed this
factor:
this [c]ourt notes that [defendant] is representing
himself. He is working. And the financial position of
. . . plaintiff is that yet again she is brought before the
[c]ourt to pay counsel fees to enforce a motion which
actually the ability of the parties to pay their own fees
or to contribute to the fees of the other parties. This
[c]ourt notes that [defendant] failed to file a [CIS] in
this case.
The reasonableness and good faith of the positions advanced by the parties
both during and prior to trial.
In her March 10, 2023, opinion, the judge considered the reasonableness
and good faith of the positions advanced by the parties:
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[T]his [c]ourt does find that there has been a complete
disregard for the [c]ourt rules by this defendant despite
the fact that he is an attorney, or moreover because the
[c]ourt has very succinctly, very clearly throughout this
litigation has spelled forth and explained to this
defendant exactly what is required and the majority of
his motions have been denied because of their
deficiencies in his submission[s].
Further the [c]ourt finds that this defendant
disregarded the directive with regard to the time that he
was required to file the reply of this motion. And the
representations that this litigant has made with regard
to different [c]ourt orders, those that he choose to
submit to the [c]ourt, as well as a misrepresentation to
the [c]ourt as to the QDROs and all QDROs being
subject—rather all pensions being subject to the
QDROs. Although during oral argument I will note that
. . . defendant disagreed with the [AFJOD].
And certainly this plaintiff yet again has been
brought to [c]ourt to defend her position and to seek an
enforcement of the child support as well as the QDRO
....
Further, in her June 9, 2023, opinion on this factor, the judge stated:
This [c]ourt notes that the reasonableness and
good faith of the, of [plaintiff] in this case is evident.
This is the perhaps the third motion with regard to child
support or reconsideration that is completely deficient.
There have been at least two other motions filed by
[defendant] that are completely deficient and such that
the—he has not prevailed in any of those prior motions.
Similar, if not the exact same arguments have been
made repetitively in the following motions.
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I indicated, [plaintiff] has been very reasonable all
along. Has made good faith in seeking the relief that
she's requesting. [Defendant], this [c]ourt finds, does
not find—or rather this [c]ourt finds [has] not exhibited
good faith in that he filed a motion of such deficiency
and consistently failing to include a [CIS].
The extent of the fees incurred by both parties.
In her March 10, 2023, opinion, the judge stated:
And certainly this plaintiff yet again has been brought
to [c]ourt to defend her position and to seek an
enforcement of the child support as well as the QDRO
in his position. So the extent of the fees incurred by
both parties, . . . plaintiff had to incur the fees in the
amount of $3,160[.00] and $2,514[.00].
Further in her June 9, 2023, opinion, the judge stated:
The extent of the fees incurred by both parties.
This [c]ourt finds that the amount of $2,888[.00] was
paid by, or rather was, has been incurred by [plaintiff].
[Defendant] represents himself.
Any fees previously awarded.
In her March 10, 2023, opinion, the judge stated:
[T]here were two prior occasions, on April 29th, 2021
counsel fees in the amount of $2,294[.00], that amount
was added to the arrears. And on August 31st, 2021
counsel fees were awarded in the amount of
$3,840[.00]. Those have not been paid.
In her June 9, 2023, opinion, the judge stated:
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The [c]ourt has consistently provided counsel fees to
[plaintiff]. And this [c]ourt also notes that none of
those fees have ever been paid by [defendant] which
goes to the next factor, the amount of fees previously
paid to counsel by each party.
The amount of fees previously paid to counsel by each party.
In her March 10, 2023, opinion, the judge carefully considered the amount
of fees paid to counsel by each party when she stated,
[T]here were two prior occasions, on April 29th,
2021 counsel fees in the amount of $2,294[.00], that
amount was added to the arrears. And on August 31st,
2021 counsel fees were awarded in the amount of
$3,840[.00]. Those have not been paid.
Further in her opinion from June 9, 2023, the judge again considered this
factor when she stated,
The [c]ourt has consistently provided counsel fees to
[plaintiff]. And this [c]ourt also notes that none of
those fees have ever been paid by [defendant] which
goes to the next factor, the amount of fees previously
paid to counsel by each party.
The results obtained.
In her opinion from March 10, 2023, the judge scrutinized the results
obtained: "[T]his plaintiff has been successful in her cross[-]motions and in
opposition to . . . defendant's motion, he has not succeeded."
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On June 9, 2023, the judge weighed the financial circumstances of the
parties and determined: "In this motion, [plaintiff] has prevailed in every relief
that she has sought. [Defendant] has not."
The degree to which fees were incurred to enforce existing orders or to
compel discovery.
In her March 10, 2023, opinion, the judge found: "The [c]ourt notes again
yet for the deficiencies the degree to which the fees were incurred to enforce
existing orders and/or to compel discovery, there was no discovery that was
required to be compelled."
Further, in her June 9, 2023, opinion, the judge added:
The next factor, the degree to which fees were
incurred to enforcing existing order or to compel
discovery. This [c]ourt finds that part of that
cross[-]motion included enforcing the prior order, the
very order that [defendant] is asking the [c]ourt to
reconsider.
This [c]ourt notes that with regard to the
reconsideration, if it wasn't clear before, this [c]ourt
notes that nothing has been indicated by [defendant]
with regard to any substantive aspect because his
motion is deficient, so procedurally deficient.
Any other factor bearing on the fairness of an award.
In her March 10, 2023, opinion, the judge considered this factor:
[T]his [c]ourt does find that the—the amounts
submitted by counsel are fair and reasonable in—
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similar to the rate in which counsel similarly is situated
in it[]s geographical area. So with regard to the fees and
request for fees[,] the fee amount of $3,160[.00], that
was for the cross[-]motion to defend and enforce child
support. This [c]ourt will add that amount to the arrears
of child support.
With regard to the fees, that is $2,514[.00] for the
cross[-]motion regarding the QDRO, at this time this
[c]ourt does grant those fees after an assessment of the
factors required by the [c]ourt . . . .
On June 9, 2023, the judge noted:
This [c]ourt does find that, again [defendant] is seeking
an application with regard to child support. He fails to
file a [CIS]. This [c]ourt has advised him in filing such
motions previously that a [CIS] is required. He has
failed to do that.
Accordingly this [c]ourt is going to grant the
request for counsel fees and costs for the within
application in the amount of $2,888[.00] . . . .
We reject defendant's argument that the judge abused her discretion by
not applying the American Rule. To the contrary, the judge properly applied the
Rule 5:3-5(c) factors. We conclude the judge provided thorough reasons in her
determinations—in two different opinions—and detailed her findings as to each
factor enumerated under Rule 5:3-5(c). The judge noted in her analyses plaintiff
had to file several post-judgment motions to enforce the terms of the AFJOD
now entered ten years ago. Moreover, the judge highlighted defendant's
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repeated refusal to comply with prior court orders and file a CIS with his
motions.
In addition, the judge delineated defendant's financial circumstances in
comparison to plaintiff's and the substantial child support arrears due and owing.
Our review of fee applications is governed by a standard of a clear abuse of
discretion. City of Englewood v. Exxon Mobile Corp., 406 N.J. Super 110, 123
(App. Div. 2009). Here the judge made specific findings as to the Rule 5:3-5(c)
factors. In light of the foregoing guiding principles, we discern no abuse of
discretion.
We conclude the remaining arguments—to the extent we have not
addressed them—lack sufficient merit to warrant any further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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